Allahabad High Court
Maharaj Swami vs State Of U.P. And 5 Others on 21 January, 2021
Bench: Munishwar Nath Bhandari, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 1257 of 2020
Appellant :- Maharaj Swami
Respondent :- State Of U.P. And 5 Others
Counsel for Appellant :- Ashutosh Srivastava,R.C. Maurya,Sr. Advocate G.K. Singh
Counsel for Respondent :- C.S.C.,Adarsh Singh,Indra Raj Singh
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Rohit Ranjan Agarwal,J.
Order on Exemption Application
The application seeking exemption from filing certified copies of the order of the High Court is allowed.
The defect stands cured.
Order on Appeal
By this appeal, a challenge is made to the order dated 19.11.2020 granting final relief to the non-appellant/petitioner by an interim order, though the same is not permissible in view of the catena of judgments of the Apex court.
It is a case where an order was passed on 27.06.2020 allowing the appellant/non-petitioner to officiate on the post of Principal and thereby the non-appellant was to give charge of the post. The non-appellant/petitioner challenged the order and the same has been stayed by the learned Single Judge. It is mainly on the ground that the appellant/non-petitioner was appointed on ad-hoc basis and thus could not have replaced non-appellant/petitioner.
The order impugned has been passed ignoring the appointment of the appellant herein after his selection by the Commission. Initially, the appointments are given on temporary/ad-hoc basis, but after completion of period of probation, necessary order is passed for confirmation which has been passed in favour of the appellant/non-petitioner.
In view of the above and in absence to the challenge of the order of appointment of the appellant/non-petitioner, there was no reason for learned Single Judge to comment on the nature of appointment. The simple issue before the learned Single Judge was as to whether the charge of the post of Principal could have been given to the appellant. Instead of addressing the issue aforesaid, the appointment of the appellant/non-petitioner was doubted. Taking into consideration the facts, the appeal has been preferred.
Learned counsel for the non-appellant submits that the appellant retired on 30.06.2020 itself on attaining the age of superannuation. A reference of para 7 of rejoinder affidavit has been given to indicate admission of the appellant about his retirement on 30.06.2020. He submits that retired employee could not have been posted when non-appellant/petitioner was officiating as Principal.
In the light of the fact aforesaid and subsequent order whereby the appellant has been posted now at Prayagraj and joined the post of the Principal, the appeal should be dismissed.
We have considered the submissions of the learned counsel for the parties and perused the record.
The writ petition was filed by the non-appellant to challenge the order dated 27.06.2020 when he was directed to give charge to the post of Principal to the appellant.
It is not in dispute that so far as the appellant is concerned, he was appointed on the post of Assistant Lecturer after his selection by the Commission, though initial order of appointment shows it to be of temporary basis. The fact further remains that the post of Assistant Lecturer is interchangeable with that of Principal. Thus, the appellant was entitle to be posted as Principal.
So far as the non-appellant is concerned, he was not appointed on the post of Principal or the Assistant Lecturer, rather on the post of Head Master. The post of Head Master is not interchangeable with the Principal. Yet, non-appellant/petitioner was allowed to officiate on the post of Principal. It was with the condition that as and when a candidate of the original post would be available, the non-appellant would leave the post.
When the appellant was posted, the non-appellant herein filed a writ petition to question the order. The learned Single Judge made comment on the nature of appointment of the appellant without a challenge to the appointment order. Thus, he has gone beyond his jurisdiction.
It is further more that even as per the rejoinder affidavit given by the appellant herein, he was due for retirement on 30.06.2020 but on account of his posting as Principal, the date of retirement went up to 31.03.2021. Thus, on the date when the order was passed, neither the appellant was a retired employee nor he was retired on 30.06.2020 but would be retired on 31.03.2021. Thus, the statement of the learned counsel for non-appellant on the issue of retirement of the appellant cannot be accepted.
It is more so when in the order under challenge, it is not , it is not observed that appellant has already retired from service. It is also be that during the pendency of the appeal, the appellant has been posted at Prayagraj, but for that reason and on his joining, the issue raised in this appeal would not be rendered infructuous.
Accordingly, we find reason to cause interference in the order dated 19.11.2020 granting final relief to the non-appellant by the interim order, though not permissible.
The order dated 19.11.2020 is set aside and the appeal is allowed.
Order Date :- 21.1.2021
//Nirmal//
